[2] Whether an implementer of a housing redevelopment improvement project under the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents is obligated to pay resettlement funds, residential relocation expenses, and relocation expenses and relocation expenses under Article 78(1) and (5) of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects even in cases where an owner of a residential building expropriated in connection with the project and loses his/her base of livelihood due to the expropriation

[3] The legal nature of the right to claim compensation for the cost of relocating a residential building tenant who has been moved to a legally implemented public project (=right under public law) and the procedure of litigation on the compensation therefor (=administrative litigation) / Whether the form of lawsuit claiming compensation for the cost of relocating a residential building tenant and whether the above legal principle applies to cases where the owner of a residential building seeks compensation for resettlement funds, relocation costs, and relocation costs against the project implementer (affirmative

2. Of the judgment below, the part of the Plaintiff’s relocation funds, residential relocation expenses, and ancillary claims related to director expenses are reversed, and this part of the case is remanded to the Seoul High Court.

3. The plaintiff's remaining appeals against the defendant ○○○○ Housing Redevelopment Project Association are dismissed.

4. The plaintiff shall bear the total costs of litigation between the plaintiff and defendant local land tribunal.

A. Relevant legal principles

According to Articles 54(1) and (2) and 55(1) of the former Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions for Residents (wholly amended by Act No. 14567, Feb. 8, 2017; hereinafter “Urban Improvement Act”), a project implementer who implements a housing redevelopment improvement project shall, without delay, notify the purchaser of the matters determined by the management and disposal plan after completion of construction and completion of construction, and transfer the ownership of the site or building after completion of construction and public announcement in the official report of the relevant local government. The purchaser of the site or building shall acquire the ownership of the site or building on the date following the public report of the relevant local government. In such cases, the right to registered land or building and the right to lease that meet the requirements under Article 3(1) of the Housing Lease Protection Act shall be deemed established in the site or building to which the ownership is transferred. In such cases, if the ownership of the site or building becomes effective, the project implementer who implements the redevelopment improvement project shall be determined and public announcement of the ownership of the site or building within 20.

Considering the public interest and collective nature of a rearrangement project as above and the need to protect legal stability by maintaining the legal relationship already formed in accordance with a transfer announcement, it is reasonable to interpret that there is no legal interest in seeking revocation or nullification of the adjudication of expropriation or objection made for the relevant rearrangement project after the relocation announcement takes effect (see Supreme Court Decision 2013Du1536, Mar. 16, 2017).

B. According to the reasoning of the first instance judgment cited by the lower court and the evidence duly admitted by the lower court, the following facts are revealed.

1) Defendant ○○○○○ Housing Redevelopment and Improvement Project Association (hereinafter “Defendant Cooperative”) obtained authorization for establishment from the head of Mapo-gu Seoul Metropolitan Government on September 29, 2008 to implement a housing redevelopment and rearrangement project within 30,946 square meters at the address of Mapo-gu Seoul ( Address 1 omitted).

2) 원고는 위 정비사업 구역 내에 있는 서울 마포구 (주소 2 생략) 다세대주택 제□□층 제◇호 벽돌조 36.90㎡(이하 ‘이 사건 부동산’이라고 한다)의 소유자이다.

3) The Plaintiff filed an application for parcelling-out within the period for filing an application for parcelling-out, but did not conclude a contract for parcelling-out with the Defendant Cooperative within the period for concluding the contract for parcelling-out (from September 24, 2012 to October 31, 2012).

4) The Defendant Cooperative filed an application for adjudication on expropriation of the instant real estate with the Plaintiff, which did not reach an agreement on compensation with the Plaintiff, and on November 27, 2015, the Seoul Special Metropolitan City and Local Land Expropriation Committee (hereinafter “Defendant Committee”) rendered an adjudication on expropriation of the instant real estate (hereinafter “instant adjudication on expropriation”).

5) The Defendant Cooperative completed the construction of the rearrangement project, and completed the procedure of notification of the transfer on October 13, 2016 regarding the instant project.

C. Examining the above facts in light of the legal principles as seen earlier, since the Defendant Union issued a public notice of the transfer of the instant project after the instant expropriation ruling and became effective, the Plaintiff no longer has a legal interest to seek revocation of the instant expropriation ruling.

D. Nevertheless, the lower court rendered a judgment on the Plaintiff’s claim for revocation of the instant expropriation ruling. In so doing, the lower court erred by misapprehending the legal doctrine on legal interests after the transfer notice became effective, thereby adversely affecting the conclusion of the judgment.

2. Judgment as to the ground of appeal No. 1 against the defendant union (the main claim against the defendant union)

A. The lower court determined that the evidence submitted by the Plaintiff alone is insufficient to acknowledge that the Defendant Union set up a first-class collateral on the instant real estate for moving expenses for the Plaintiff’s moving expenses, and that it was difficult to conclude a loan contract on the condition that the Plaintiff would move out at the time of the Plaintiff’s residence, and there was no other evidence to support that the Defendant Union rejected the conclusion

B. In light of the record, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

3. On the second ground for appeal against the defendant union (the part concerning the claim for damages caused by unlawful removal among the conjunctive claim against the defendant union)

A. On October 13, 201, the lower court determined that: (a) insofar as the Defendant Union removed the instant real estate based on the written consent for removal submitted by the Plaintiff around October 25, 2012, before the expiration of the period for concluding a sales contract after obtaining approval of the management and disposal plan from the head of Mapo-gu Seoul Metropolitan Government on October 13, 201; (b) the Defendant Union had completed a practical consultation with the Plaintiff before filing an application for the instant adjudication on expropriation.

B. Examining the relevant legal principles and records, the lower court did not err in its judgment by misapprehending the legal doctrine regarding removal of previous assets invested by a partner, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules.

Supreme Court Decision 208Da91364 Decided July 28, 2011, which was invoked in the ground of appeal by the Plaintiff, held that, in case where the redevelopment association claims a transfer of real estate to the owner of the land, etc. who became an object of cash settlement before the approval and public notice of the management and disposal plan, after the approval and public notice of the management and disposal plan, under Article 49(6) of the Act on the Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), a settlement amount must be paid first prior to the delivery of the relevant real estate in accordance with the principle of advance compensation as stipulated in Article 62 of the Act on the Acquisition of Land, etc. for Public Works Projects (hereinafter “Land Compensation Act”), where the Plaintiff had maintained its membership status, and prepared and delivered a written consent for removal to the Defendant partnership to arbitrarily perform its investment obligation as prescribed by the articles of association of the association, but it is not appropriate to rely on the instant case in which the land owner was

4. Determination as to the ground of appeal No. 3 against the defendant union (the part concerning the claim for reimbursement of resettlement funds, relocation expenses, and relocation expenses among the conjunctive claims against the defendant union)

A. Relevant legal principles

(i) Resettlement settlement money, housing relocation expenses, and relocation expenses for the persons subject to settlement of cash by the implementer of the housing redevelopment project;

Article 38 of the Act on the Improvement of Urban Areas and Dwelling Conditions for Residents ("Act") provides that the implementer of a housing redevelopment project may expropriate the land or goods in a rearrangement zone if necessary to implement a rearrangement project, and the main sentence of Article 40(1) provides that the provisions of the Act on the Compensation for Land shall apply mutatis mutandis to the expropriation, etc. except as otherwise provided for in the Act

Meanwhile, Article 78(1) of the Land Compensation Act provides, “A project operator shall either establish and implement relocation measures or pay resettlement funds, as prescribed by Presidential Decree, for persons who lose their base of livelihood due to the implementation of public works (hereinafter “persons subject to relocation measures”),” and Article 78(5) provides, “A resident of a residential building shall be compensated by calculating the expenses incurred in moving his/her residence and the expenses incurred in transporting movable property, such as household effects, for the resident of the residential building.” Pursuant to each of the above provisions, the aforementioned provisions stipulate that “A resident shall be compensated by calculating the expenses incurred in moving his/her residence and the expenses incurred in transporting movable property, such as household effects.” With respect to the specific requirements and amount of the relocation funds to be compensated for the person subject to relocation measures, the owner of a residential building incorporated into a zone where public works are performed, the relocation funds to be compensated for the resident, and the expenses to be paid to the resident.”

Comprehensively taking account of these provisions, it is reasonable to view that the implementer of a housing redevelopment project under the Act on the Improvement of Urban Areas and Dwelling Conditions for Residents who were accommodated in a residential building in connection with the project and who lost their base of livelihood accordingly constitutes a person subject to cash settlement, even if he/she falls under a person subject to cash settlement, there is a duty to pay resettlement funds, relocation expenses, and directors’ expenses as prescribed by the said provisions (see, e.g., Supreme Court Decisions 2011Du19031, Jan. 10, 201; 201Du21720, Jan. 24, 2013).

2) Type of claim for resettlement funds, etc. and lawsuit

According to Articles 2 and 78 of the Land Compensation Act, a tenant is a related person who has a right by lease, etc. with respect to land to be acquired or used by a project implementer and is entitled to receive compensation for expenses incurred in moving a house in cases falling under the main sentence of Article 54(2) of the Enforcement Rule of the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter “Enforcement Rule of the Land Compensation Act”). However, such cost of moving a house has the nature of the amount of money paid in the social security level for tenants who are likely to suffer from special difficulties due to the policy purpose of encouraging early moving of tenants residing in the relevant zone where the relevant public works are performed to facilitate the implementation of the project and the relocation of a house (see Supreme Court Decision 2006Du2435, Apr. 27, 2006). Therefore, the right to claim compensation for the cost of moving a house of a residential building relocated due to the legally implemented public works is the right under public law, and therefore, the lawsuit surrounding the compensation should be subject to the administrative litigation law, not subject to civil litigation.

In full view of the following: (a) the form of a lawsuit claiming compensation for relocation expenses of a tenant; (b) the right to claim compensation for relocation expenses naturally arise when meeting the requirements thereof; and (c) Article 54(2) and (3) of the Enforcement Rule of the Land Compensation Act; (c) the right to claim compensation for relocation expenses is subject to the party’s lawsuit provided for in Article 3 subparag. 2 of the Administrative Litigation Act: Provided, That in full view of Articles 2, 50, 78, and 85 of the Land Compensation Act, which are applicable mutatis mutandis pursuant to Article 40(1) of the Act on the Maintenance and Improvement of Urban Areas and Dwelling Conditions, in cases where the tenant contests the increase or decrease of compensation for relocation expenses of the tenant, the right to claim compensation for relocation expenses may be granted pursuant to the administrative litigation provided for in Article 85(2) of the Land Compensation Act; and (d) the right to claim compensation for relocation expenses may be applied to the landowner of the building (see Supreme Court Decision 2007Da1829, May 29, 207, 2008).

B. In the instant case, there is no circumstance to deem that there was a judgment regarding the resettlement funds, housing relocation expenses, and director’s expenses for claiming compensation by the Plaintiff, and thus, the Plaintiff’s relocation funds, housing relocation expenses, and claim for compensation for director’s expenses shall be deemed as subject to party litigation under Article 3 subparag. 2 of the Administrative Litigation

C. Nevertheless, the lower court determined that: (a) the Plaintiff’s filing of a claim for resettlement funds, relocation expenses, and director expenses must first undergo the adjudication procedure; and (b) the Plaintiff’s filing of a claim for compensation for losses against the Defendant Union without going through such adjudication procedure; and (c) dismissed the Plaintiff’s filing of a claim for resettlement funds, relocation expenses, and director expenses against the Defendant Union. In so determining, the lower court erred by misapprehending the legal doctrine on the legal nature of the claim for compensation for resettlement funds

5. Conclusion

Therefore, the part of the judgment of the court below regarding the plaintiff's claim against the defendant committee is reversed. Since this part of the case is sufficient for the Supreme Court to directly render a judgment, this part of the case is revoked pursuant to Article 8 (2) of the Administrative Litigation Act and Article 437 of the Civil Procedure Act, and this part of the judgment of the court of first instance is dismissed. The part of the lawsuit is dismissed. 2) The part of the judgment of the court below concerning the plaintiff's relocation settlement funds, residential relocation expenses, and director's ancillary claim against the defendant union is reversed, and this part of the case is remanded to the court below for a new trial and determination. 3) The remaining appeal against the plaintiff's defendant union is dismissed. 4) The plaintiff and the defendant committee

Justices Lee Ki-taik (Presiding Justice)